The Ketchum keystone. [volume] (Ketchum, Idaho) 1885-1899, 1887-01-29

From the remote period when Law
began to take form in this country
trial by jury, or some process tant.
amount thereto, has been an inhe.
rent part of English jurisprudence
We have never parted with it. We
have not seriously changed its con.
dition. In principle it is retained
in its original simplicity, and its
value and antiquity are admitted
by all those writer's who have dealt
with the subject. It's retention is
jealousy, and even peremptorily,
insisted on in Magma Charta. That
it has been occasionally abused has
not diminished the admiration for
it, and time but confirms the judg-
ment of our early legal commenta-
tors in describing it as the bulwark
of our liberties. The Norman at
tempt to substitute for it trial by
battle is at once proof of the part
it played far back in the national
existence and Of it's hold upon the
English mind. 1t was very soon
found that trial by battle was
neither a safe nor a fair way of get
ting at the guilt or innocence Of an
accused party. 1t seems, however,
to have been used in criminal and
civil cases and in military trials.
The process was somewhat peculiar
In case of felony the accused was
at liberty to follow up his plea of
not guilty with his readiness to
make good the same with his body
in fair fight against the prosecutor.
This being done, the Court would
appoint a time and place for the
battle, and it was provided that the
night before the day of battle both
parties should be arraigned by the
Marshal and brought into the field
before the Justices of the Court
where the appeal was pending.
Then, at the rising of the sun, they
we're to appear bear-headed and
bear legged from the knee down.
ward, and bare on the arms to the
elbow, armed only with bastons an
ell long and 4-cornered targets I;
and before they began the contest
they had neither ate nor drank nor
done anything else by which the
law of God might be depressed and
the law of the devil exalted. The
combat then began. If the accused
were vanquished so that he could
not nor would not fight longer, it
was within the power of the Court
to order him to be hanged immedi-
ately. If, however, he could MAIN
tain the fight till twilight, judgment
was to be given in his favor. If,
on the other hand, the prosecutor
became "crying coward" the ac-
cused could recover damages and
might plead his acquittal. There
was an element of fairness in the
proceeding, that if the prosecutor
by age or otherwise was unable to
wage battle, the defendant would
be compelled to put himself upon
his country, no champions being
allowed in criminal cases. At the
best, however, the system has
neither justice nor equity to COM
mend it, and it is not surprising
that trial by jury held its own
against it.
The origin of this "bulwark Of
our liberty" has never been clearly
ascertained. 1t has been attributed
to the Greeks. 1t was in principle
exercised in ancient Rome, where
a criminal trial was conducted be-
fore n presiding judge and body
of selected citizens, whose function
it was to determine the guilt or in
nocence of the accused, and who
could exercise also the prerogative
of mercy. Some writer's claim that
the system was in use among the
Britons, and there is little doubt
that in substance it was practiced in
the time of Ethelred. In Forsyth's
History of Jury Trial." We are told
that in the Anglo-Saxon era courts
were presided over by reeve, who
had no voice in the decision, and
that the number of persons who
sat was usually twelve. The asser-
tions of parties were admitted to
be conclusive, were supported by
the oaths of a certain number Of
compurgators. In matters of gen.
eral concern it was used, in arriving
at decision, to appeal to the tes-
timony of the neighborhood; and
it seems also that sworn witnesses
were appointed in each district,
their duty being to>attest all bar
gains and transactions, in order
that they might be ready to give
evidence in case of dispute. Every
care, we are told further, was taken
that all dealings between man and
man should be as open and public
as possible. Notwithstanding that
Duke William favored the absurd
and crude system of battle-right, it
is not improbable that to the con-
quest we are indebted for the intro
duction of trial by jury in very
much the form in which we are
accustomed to it. It was intro
duced into Normany itself from